13-430
De Michele v. Tierney
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT.
CITATION TO A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS
PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE
32.1 AND THIS COURT'S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY
ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE
EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION "SUMMARY ORDER"). A PARTY CITING TO A SUMMARY ORDER
MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated term of the United States Court of Appeals
for the Second Circuit, held at the Thurgood Marshall United
States Courthouse, 40 Foley Square, in the City of New York, on
th
the 7 day of February, two thousand fourteen.
PRESENT: DENNY CHIN,
SUSAN L. CARNEY,
CHRISTOPHER F. DRONEY,
Circuit Judges.
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FRANK DE MICHELE,
Plaintiff-Appellant,
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BRIAN P. TIERNEY, in his individual
and official capacity as Police
Officer in the Westchester County
Department of Public Safety, GEORGE
O. RUIZ, in his official capacity as
Police Officer in the Westchester
County Department of Public Safety,
CHRISTIAN M. GUTIERREZ, in his
individual and official capacity as
Police Officer in the Westchester
County Department of Public Safety,
Defendants-Appellees,
CITY OF NEW YORK, DOES 1-20,
TIMOTHY BUGGE, in his individual
capacity and in his official
capacity as a Deputy Inspector in
the New York Police Department,
DEODAT URPRASAD, in his individual
capacity and his official capacity
as a Captain in the New York City
Police Department, ADAM MELLUSI, in
his individual and official
capacity as a Sergeant in the New
York City Police Department, ROGER
DICARLO, in his individual and
official capacity as police officer
in the New York Police Department,
ANDREW MYBERG, in his individual
and official capacity as a police
officer in the New York Police
Department, MITCHELL B. SERLIN, in
his individual and official
capacity as a Police Officer in the
Westchester County Department of
Public Safety, CHRISTOPHER M.
LIEBERMAN, in his official capacity
as Police Officer in the
Westchester County Department of
Public Safety, MICHAEL N. BRADY, in
his official capacity as Police
Officer in the Westchester County
Department of Public Safety,
RICHARD E. PUCILLO, in his official
capacity as Police Officer in the
Westchester County Department of
Public Safety, County of
Westchester, WILLIAM T. MCGUINNESS,
in his individual and official
capacity as a Sergeant in the
Westchester County Department of
Public Safety,
Defendants.
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FOR PLAINTIFF-APPELLANT: SCOTT J. KOPLIK (Todd J. Krouner,
on the brief), Law Office of Todd
J. Krouner, Chappaqua, New York.
FOR DEFENDANTS-APPELLEES: LINDA MARIE TRENTACOSTE, Associate
County Attorney, for Robert F.
Meehan, Westchester County
Attorney, White Plains, New York.
Appeal from the United States District Court for the
Southern District of New York (Gardephe, J.).
UPON DUE CONSIDERATION, IT IS ORDERED, ADJUDGED, AND
DECREED that the judgment of the district court is AFFIRMED.
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Plaintiff-appellant Frank De Michele appeals from the
district court's judgment entered January 2, 2013, pursuant to a
jury verdict in favor of defendants-appellees Brian P. Tierney,
George O. Ruiz, and Christian M. Gutierrez, dismissing De
Michele's claims under 42 U.S.C. § 1983 for, inter alia, the use
of excessive force in violation of the Fourth Amendment. De
Michele argues on appeal that the district court erred in (1)
failing to instruct the jury on a theory of "alternative
liability," (2) permitting improper expert testimony, and (3)
precluding evidence that the defendants engaged in a cover-up.
We assume the parties' familiarity with the facts, procedural
history, and issues for review.
1. Alternative Liability Jury Instruction
Where there is a factual predicate in the trial record,
a district court must give a properly requested jury charge.
Anderson v. Branen, 17 F.3d 552, 557 (2d Cir. 1994) ("A litigant
is entitled to an instruction on a claim where that claim is
supported by evidence of probative value."); cf. McCardle v.
Haddad, 131 F.3d 43, 52 (2d Cir. 1997) ("A party is not entitled
to have the court give the jury an instruction for which there is
no factual predicate in the trial record.").
Here, De Michele requested that the district court
instruct the jury on the alternative liability theory as follows:
Where the conduct of two or more actors
causes an injury, and it is proven that
harm has been caused to the Plaintiff by
only one of them, but there is
uncertainty as to which one has caused
it, the burden is upon the Defendants
Tierney, Gutierrez and Ruiz to prove
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that none of them has not caused the
harm, and that only Captain Urprasad
did.
(emphasis added). The language is drawn directly from the
Restatement (Second) of Torts, which provides that "[w]here the
conduct of two or more actors is tortious, and it is proved that
harm has been caused to the plaintiff by only one of them, but
there is uncertainty as to which one has caused it, the burden is
upon each such actor to prove that he has not caused the harm."
Restatement (Second) of Torts § 433B(3) (1965) (emphasis added);
cf. In re Agent Orange Prod. Liab. Litig., 597 F. Supp. 740, 822
(E.D.N.Y. 1984), aff'd sub nom. In re Agent Orange Prod. Liab.
Litig. MDL No. 381, 818 F.2d 145 (2d Cir. 1987) (citing Summers
v. Tice, 199 P.2d 1 (Cal. 1948)) (noting that alternative
liability theory applies where "two or more defendants have
independently breached a duty of care owed to [a] plaintiff[],
but it is impossible to determine . . . which one caused the
injury"); In re Methyl Tertiary Butyl Ether ("MTBE") Products
Liab. Litig., 447 F. Supp. 2d 289, 298 n.33 (S.D.N.Y. 2006).
On its face, the alternative liability instruction De
Michele requested applies only where one of two or more
defendants, and only one, caused his injuries. On the evidence
presented, however, no reasonable jury could have found that De
Michele's injuries were caused by only a single defendant.
Indeed, in response to direct questioning on the subject, De
Michele's own expert testified that "[i]t's like getting shot
twice. You can't tell which one or both of them caused damage."
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Thus, the district court was correct in concluding that the
instruction sought by De Michele lacked factual support.
2. The Expert Testimony
"We review a district court's evidentiary rulings for
abuse of discretion, and will reverse only for manifest error."
Cameron v. City of New York, 598 F.3d 50, 61 (2d Cir. 2010)
(internal quotation marks omitted). We find no abuse of
discretion here. The district court acted within its discretion
in permitting the testimony of Dr. Marc Appel, who relied on De
Michele's medical records to provide his expert opinion regarding
alternative causes of De Michele's injuries. Dr. Appel
testified, for instance, that De Michele's medical records
suggested that he did not suffer a torn labrum as a result of his
handling during the arrest, contrary to his contentions, and the
torn labrum that was later diagnosed was likely caused by
physical activities unrelated to his arrest. This was relevant
testimony, and Dr. Appel was qualified to give it.
3. The Alleged Cover-Up
We similarly find no abuse of discretion in the
district court's decision to preclude as irrelevant evidence of
an alleged cover-up. De Michele sought to introduce evidence
suggesting that the crew of a Westchester police helicopter saw
his arrest, but intentionally failed to record that arrest with
the helicopter's recording equipment so as to conceal the
excessive force allegedly used by defendants Tierney, Ruiz, and
Gutierrez. There was, however, as the district court held, "no
evidence connecting the alleged cover-up actions of [the
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helicopter crew]" to Tierney, Ruiz, or Gutierrez. Thus, the
district court did not abuse its discretion in concluding that
the evidence was not relevant to the claims against the
defendants on trial.
We have considered all of defendants' remaining
arguments and conclude that they are without merit. For the
foregoing reasons, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O'Hagan Wolfe, Clerk
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